COLUMBUS, Ohio – The fight over a proposed abortion amendment on the November ballot will be waged in pews and at pulpits across Ohio. But despite a common public perception of how federal tax laws limit political activity by churches and other charities, the Catholic church and other religious organizations that advocate for and against a measure to enshrine abortion rights in the state constitution shouldn’t face any legal jeopardy, according to legal experts.
The Catholic Church in Ohio is gearing up for this November’s election in a manner that in some ways resembles a political action committee. It’s preparing to distribute literature to parishioners, deploy church leaders to high-dollar political fundraisers, make direct campaign contributions totaling in at least the hundreds of thousands of dollars, and even have its priests preach from the pulpit in opposition to a ballot measure that would add legal protections for abortion to the state constitution.
In light of these moves, Brian Hickey, executive director of the Catholic Conference of Ohio, the church’s official state advocacy arm, said he’s heard from people who believe that churches and other religious organizations aren’t allowed to wade into politics under federal law that allows them to accept tax-free donations.
But that’s not the case, Hickey said.
“The law is very clear. We can speak to ballot issues and the underlying issues themselves,” Hickey said. “And for Catholics who disagree with the church’s position on abortion and protections for life, we’re happy to talk about it and why the church teaches what it does.”
In interviews, experts in election and tax law confirmed that under a 1954 tax-code provision known as the Johnson amendment, churches are barred from endorsing political candidates as part of their tax-exempt status.
Religious leaders sometimes skirt the edges of those limitations. Black faith leaders long have been a key constituency for Democratic politicians, while White evangelical pastors are a core part of the American political right. Religious backers of Donald Trump in 2016 got the then-candidate to promise to revoke the Johnson amendment, named for Lyndon B. Johnson, the former legislator and president, although he didn’t do so, and it remains on the books today.
But the provision’s rules generally don’t apply to issues, including campaigns for ballot issues. Tax law views politicking surrounding things like the proposed abortion amendment as more akin to lobbying.
“It’s a misnomer to think that churches don’t have a voice in politics,” said Atiba Ellis, a law professor at Case Western Reserve University. “It’s that churches cannot advocate for or against candidates for public office.”
“I understand why the rules are confusing when it comes to ballot measures,” said Beth Kingsley, a Washington D.C.-based attorney who specializes in nonprofit tax law. “It’s on the ballot. The advocacy around that is regulated by the state’s campaign finance laws. And so, it feels like the same thing as endorsing a candidate… But from an IRS perspective, it’s considered lobbying and that is allowed for charities.”
The Ohio Catholic Conference opposes State Issue 1, the newly-named ballot measure that would add legal protections for abortion to Ohio’s constitution.
The proposed amendment would generally guarantee that patients could make their own reproductive decisions, including birth control, fertility treatment, continuing a pregnancy, or abortion and miscarriage care up until viability, which is around 22 to 24 weeks.
After that point, the state could regulate abortion. However, abortions after that cutoff could be permitted “if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.”
Ohioans United for Reproductive Rights, the campaign backing Issue 1, also counts religious groups among its backers, including The Greater Cincinnati Board of Rabbis and the United Church of Christ.
“The national setting of the United Church of Christ believes in freedom,” said the Rev. Traci Blackmon, UCC Associate General Minister for Justice and Local Church Ministries. “We understand this belief to be guided by scripture and supported by the resolutions of the church. Reproductive freedom is not an exception to the Faith. The reproductive decisions of persons and families are theirs to make and should not be legislated by those who are elected to uphold and protect the freedoms of all citizens.”
But the Catholic Church plays a more integral part in the anti-abortion movement, including helping bankroll TV ads and offering other support that’s more akin to a political action committee.
Last year, the Catholic church in Michigan gave at least $6 million to an unsuccessful campaign to defeat a similar abortion measure there, around a quarter of the funds the “no” campaign collected. In Ohio, state campaign finance records show that dioceses across the state gave $900,000 to Protect Women Ohio, the official anti-Issue 1 political campaign group. The church also is helping raise money for the effort, with Cleveland Bishop Edward Malesic appearing alongside Republican Gov. Mike DeWine at a Cleveland-area fundraiser.
Hickey said church officials clearly understand restrictions the law places on religious groups when it comes to political issues. The church doesn’t get involved in backing political candidates, he said, but priests and other leaders commonly talk about the issues that are important to the church, and which often cut across party lines.
“We’re going to talk about the church’s teaching generally with talking about life and the importance of caring for those most vulnerable in society such as the immigrant, the refugee the poor, the homeless and of course pre-born children,” Hickey said.
Even when it comes to issues, federal tax law does theoretically place limits on political advocacy by religious organizations, Kingsley said.
The amount religious groups spend on lobbying still must represent an “insubstantial” amount of the organization’s overall budget, a number that attorneys generally advise translates to around 5% of an organization’s expenditures.
But, Kingsley said that religious organizations are difficult for the IRS to track, since they are not required to file 990s, the annual tax returns that most charitable organizations file detailing their financial activities to the IRS and the public.
Plus, the IRS is reluctant to audit churches generally because of the potential for public backlash, unless the organization itself appears to be fraudulent.
“It’s at the bottom of list of things that they want to deal with,” Kingsley said. “They will investigate churches that look like shams, that are the ‘Church of Me and My Spouse’ and we’re going to claim a tax deduction for our house. But they really don’t want to get in the middle of a fight about churches and politics. Because if they do, if nothing else, they know a lot of politicians are going to come to the defense of a church and attack the IRS as doing something improper even if they are following the rules.”
“They don’t have any interest in taking on the Catholic Church,” Kingsley said in short.
Luis Garcia, a spokesperson for the IRS declined to comment for this story. Garcia did point, however, to a 2015 IRS publication that offers guidance to churches and religious organizations.
“Under privacy and non-disclosure law, it is against the law for me or any IRS employee to comment on or discuss a taxpayer’s or tax entity’s tax information or relationship with the IRS,” Garcia said in an email.
There have been times in the past when the IRS has revoked the tax-exempt status of bona fide churches. In 2000, Branch Ministries lost its status after a church affiliate in New York ran a series of newspaper ads urging Christians to not vote for Bill Clinton in the 1992 presidential election, citing the then-Arkansas governor’s views on abortion and homosexuality.
But generally, Ellis said the IRS walks a balancing act when it comes to enforcing the law. Individual clerics, he said, may break the law during services, but particularly when it happens in smaller independent churches, it may never land on the IRS’s radar.
“I think there are First Amendment issues involved in this kind of regulation,” Ellis said. “If the IRS gets perceived as going out to quash religious liberty by overzealously dealing with the political prohibition, I don’t think the IRS or any part of the government was to be viewed that way.”
Mark Caleb Smith, a political scientist at Cedarville University, a private Baptist school in the Dayton area, said American churches long have gotten involved with politics, including more recently operating within or around the tax laws.
This can involve toeing the line, like inviting a political candidate to speak to a congregation and heavily implying that congregants should support them, or offering church space to political groups for organizing purposes.
But on a more basic level, Smith said, churches are a basic political unit, giving members opportunities to learn to organize and communicate in order to persuade and engage with the broader public. Through their teachings on moral issues, churches also influence their congregants’ worldviews in a way that easily translates to politics, he said.
Smith said that recently though, churches have gotten more directly involved in politics, particularly on the political right.
“I think to some degree, since our country has broken into this culture war dynamic … Religion is inherently engaged in those kinds of questions having to do with good and evil, human sexuality, marriage, male, female, abortion. Those are at some level a religious question. And it seems like religious organizations are getting pulled more and more into these conversations since they’re so fundamental to our politics,” Smith said.
Smith said he used to think there would be a serious risk for churches to wade into controversial political and social issues, because of the potential to divide congregants. But he’s changed his views in recent years, as churches increasingly have become more ideologically uniform as society has become more politically divided, and congregants have sorted themselves to live among like-minded people.
“There certainly are people who are offended by it. But in my experience, those people don’t make up enough of most congregations to really steer or create risk for the pastor or priest or whoever,” Smith said.
Andrew Tobias covers state politics and government for cleveland.com and The Plain Dealer